Fordham University School of Law Final Examination in Torts (Section 1 & 2) Date: Tuesday, May 7, 2013 This is a 3 Hour

Examination Section 1: Rm 204 Examination # ____________ Time 9:30 - 12:30 This Exam is 15 pages long Section 2: Room 203

Prof. George W. Conk ______________________________________________________ Instructions: You have three hours to complete this exam. You must answer all four questions. I will grade each question but the final grade is an overall assessment of your exam paper, as compared to others in the class. The questions are not of equal complexity. The first, second, and fourth are quite complex. The third is pretty narrow and should not consume more than a half-hour. The fourth is more complex due to multiplicity of claims. I suggest that you first read through the complete exam. (Take a deep breath to shake off the sticker shock, then get back to work.) While you are answering one question thoughts on the others will simmer on the back burner. Before you start writing I suggest you make an outline - or sketch out the issues you want to touch. Each question gives you an opportunity to discuss and apply key concepts in the law of torts and to analyze facts and apply the law to them. These are essay questions. Therefore good sentence structure, sensible paragraphs, and readability are important. Structure is important. In analyzing a problem you will want to identify the parties, the nature of the cause of action or theory of liability, the elements that must be established, and the available defenses. BE SURE TO ANSWER EACH ELEMENT OF THE QUESTION ASKED. Page 1 of 15

The product liability case is set in Massachusetts, another in Connecticut. Except for the product liability question I did not draft them with the jurisdictions law in mind. If you happen to know the relevant law, fine. Cite it. Otherwise you can use all available authority to support the result you think that law and justice demand. Concrete reference to the cases, Restatements, statutes, and other authorities is valuable to clarity of thought and explanation. But a reference to a rule number or a case by itself is not explanatory. The key is to state the principle and explain the logic of the position you urge. The number of the rule or name of the case just shows where you found the idea, or how you know it expresses the law. The essay should be understandable even without the numbers or case names. Limited Open Book The exam is limited open book. You should bring the Franklin, Rabin, Green casebook. You can also bring any principal case I have assigned on the syllabus page if it is not in the casebook. You may also bring the outline form slides I have posted. If you choose to do that I would print them in outline format. It will enable a quick search for authorities. The cases assigned and notes following cases in the casebook may be of important assistance in forming and structuring your essays. And you should also have available the text of cases assigned by me. You may bring your own notes or outlines. You may not bring any commercial outlines or other texts or treatises. You may use Exam 4 or may handwrite your answers. If your exam is handwritten it MUST be double-spaced. If it is typed I prefer 1.5 line spacing if that option is available.

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Use of Authorities Do Not cite any authorities other than what has been assigned, recommended, cited in class, or posted on the Lexis Blackboard by me. Brief identifying citations are all that is needed, e.g. Rest. 402A, Greenman v. Yuba Power, Palsgraf, etc. are acceptable forms of citation. But the Rule number and the case name are not a substitute for stating the proposition you are asserting. E.G. `There is a product liability claim under 402A. is opaque. But 402A has been interpreted to encompass manufacturing, design, and inadequate instruction or warning claims. Only a design defect claim appears here. is instructive and is helpful to the reader. Rhetoric - the Art of Persuasion Your object is to reason to a conclusion. State your opinions and defend them. A well organized argument, buttressed by reference to authority, which discusses the issues in an informed, critical way, is your goal. Be careful to draw only reasonable inferences from the facts presented. If answering a question requires assuming or even adding facts to those provided, be sure to state your additional assumptions. I am looking for an essay characterized by persuasive legal argument (with appropriate authorities noted), for accurate statement of the facts, avoidance of rhetorical hyperbole, and for succinct explanations and use of the logic of the law. Please place your self in the position contemplated by the question and address the intended recipient (e.g. judge, senior partner, insurance claims manager). Think of the reader. That is who you seek to persuade. Sentences must end - preferably sooner rather than later. Paragraphs should be short. Dense blocks of type are unwelcome. Verbs should have objects - mostly. Good luck. Have a great summer. I hope to see each of you in my classroom again before you graduate from Fordham. - GWC Page 3 of 15

Q. 1 Reardon v. DePuy Orthopaedics Late in 2008 Amelia Reardon of Brookline, Massachusetts received a DePuy ASR metallic hip implant. By November 2011 she was having a lot pain and was diagnosed with foreign body inflammation and reduced movement of her metallic hip due to uneven and excessive wear of the implanted prosthesis. She underwent replacement surgery and was out of work for 9 months. For the past forty years thousands of people have received hip replacements every year. For many years the typical total hip replacement system consisted of four separate components: (1) a femoral stem, (2) a femoral head, (3) a liner, and (4) an acetabular shell. After the surgeon hollows out a patient's femur bone, the femoral stem is implanted. The femoral head is a metal ball that is fixed on top of the femoral stem. The femoral head forms the hip joint when it is placed inside the polyethylene liner and acetabular shell. Such devices have a limited life span - 15 years has been the normal limit because the friction of metal against polyethylene causes wear and tear. DePuy Orthopaedics set about research to solve that problem. They developed the ASR. The ASR Hip has a different design, one that puts the metal femoral ball directly in contact with a metal acetabular cup. The design of the ASR Hip was studied and tested. It was not extensively reviewed by the FDA for safety and effectiveness for the products intended purpose because DePuy certified that the ASR was the substantial equivalent of a design in use before the drug and device amendments of 1976. The change was that both cup and ball were metal in the new design.

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The ASR went on the market in 2004. In 2005 DePuy received some reports from consultants in other countries that there had been failures in the seating of the cup. DePuy asked the cooperation of its consultants to conduct CT Scans of patients who had received the ASR implant and a competing product the Fischer Ultramet. In June 2007 DePuy company scientists reported that the ASR did not meet the set acceptance criteria for this test because the ASR wore at a greater rate than the comparator. A product redesign team began work, exploring design options to reduce wear. That effort was abandoned in 2008. Reports of problems here and abroad continued to mount. By 2010 the UK National Registry reported that the five-year revision rate for the ASR was 12 -13%. For other metallic implants the rate was about 5%. The company began a voluntary recall, offering to pay the costs of a replacement implant with another DePuy design that had a lower revision rate. At the time of Mrs. Reardons surgery the product insert provided to the surgeon for the DePuy ASR XL hip system contained warnings including: Allergic reactions to implant materials (e.g., metal); Tissue reactions to implant corrosion or implant wear debris; Tissue reactions, osteolysis, and/or implant loosening caused by metallic corrosion, allergic reactions, or the accumulation of metal wear debris; and Premature failure due to excessive physical activity, trauma, obesity, or excessive patient weight, among others. It also cautioned that wear may be affected by factors such as weight and activity, that improper positioning may result in unusual stress conditions and a subsequent reduction in the functional life of the implant, and that the potential long-term effects of metal wear debris and metal ion production Page 5 of 15

are unknown. The surgeon provided this brochure to Mrs. Reardon before the surgery. Assume that you are an associate attorney for the office of Peter Angelos, a plaintiffs lawyer in Boston. He says to you we are going to file suit here but DePuy will remove it to federal court and it will be consolidated with hundreds of others in an MDL in some other U.S. District Court. But our Massachusetts product liability law will apply. What theories of product liability we will be able to maintain here? What defenses will we confront? Give me a basic assessment of our strong and weak points.

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Q. 2 Estate of Force v. Pierre Plaintiffs Marilyn Forces husband John was driving his motorcycle when he collided with a car. He lived - hospitalized - for ten days. He was in a semi- conscious state, unable to speak so the only observational evidence of the accident is the testimony of the defendant driver, her passenger, the policemen who arrived on the scene, and the photographer who photographed the scene. Plaintiff hired an accident reconstruction engineer. The fatal intersection is controlled by a stop sign situated on Garfield Drive twenty-seven feet from Levitt Parkway. Defendant Noah Pierre was traveling on Garfield Drive towards the stop sign. She intended to turn left when she reached the intersection. John Force was traveling on Levitt Parkway from Pierre's left towards the intersection. Defendant Garland Property leased to defendant Sunset Dental a commercial building located at the intersection. The building is on the left as one approaches the stop sign on Garfield Drive. Its grounds are lined with bushes on the Levitt Parkway side. These bushes obstruct the vision of a driver stopped at the stop sign intending to turn left onto Levitt Parkway, as Pierre planned to do that night.

Pierre testified at her deposition that as she approached the intersection she stopped four times. She admitted that the bushes obstructed her view to the left as she stopped at the sign. But as she kept edging up towards the intersection, and then she "looked to the left . . . didn't see anything coming" and then "began to make a left turn onto Levitt Parkway." occurred immediately thereafter. Pierre's front-seat passenger Noel testified at her deposition that she observed Pierre look to her left before making the left turn onto Levitt Parkway. In so doing, the passenger also looked to her left and stated that the Page 7 of 15 The accident

bushes did not obstruct their view - that she saw the motorcycle coming and gasped just before the collision. Plaintiffs' engineering liability expert, Nicholas Bellizzi, issued a report. He explained that he had approached the intersection in a rented car similar to Pierres with a passenger in the front seat. They took photographs and made observations. Bellizzi opined that the bushes were negligently maintained and violated various standards and ordinances. Bellizzi concluded that the stop sign's location, and the location and overgrowth of the bushes, proximately caused the accident. Bellizzi cited the Township's property maintenance code which addresses vegetation height, and the American Association of State Highway and Transportation Officials (AASHTO) intersection design standards. He noted that the Township's Property Maintenance Code Section 13-11, states that "plant life growing within ten feet of any roadway and within twenty-five feet of any intersection of two roadways shall be cut to a height of no more than two and a half feet." Bellizzi determined that the bushes were between sixty-five to seventy-one inches tall and were closer than ten feet from Levitt Parkway and twenty-five feet from the intersection. provides that He noted that AASHTO Chapter V "landscaping in the sight distance triangle should . . . not be

higher than three feet above the level of the intersecting street pavements." In his report, Bellizzi stated that I am mindful of the testimony of Pierre regarding her allegedly stopping four times before proceeding. However, given her testimony that the bushes obstructed her view of eastbound traffic on Levitt Parkway, and given that she never saw the approaching motorcycle, I reasonably conclude that she did not have an unobstructed view of Levitt Parkway when she proceeded into that Page 8 of 15

roadway. Therefore, it is further reasonable to conclude that the location and overgrowth of the shrubbery was a significant proximate cause of the collision. I estimate that Force was traveling at about 35 miles an hour in a 25 mile an hour zone. I find no evidence to conclude that he was driving negligently. He wore a helmet and was thrown from the motorcycle by the force of the collision, suffering the injuries from which he died. Assume that you are an associate at the offices of Elliot Anderman, counsel for plaintiff. He says to you We have completed the liability stage of the pretrial discovery. Take a look at this Force v. Pierre case for me. Give me a memo discussing the law and the facts. I expect motions for summary What arguments will be judgment from Sunset, Garland, and Pierre. issue? Why? Part II Damages John Force lingered for twelve days before he died at age 42. He was in and out of consciousness post accident. From the hospital records it looks like he was on a steady dose of intravenous morphine. He had no health insurance. His medical bills were $120,000 and his funeral expenses of $20,000 were covered by the Ironworkers Local 48 Welfare Fund, which provides that if any third party is liable for the expenses incurred by a member or his estate the Fund shall be reimbursed in full from any recovery. Johns wife Marilyn, a dental assistant making $40,000/year, was forty years old at the time of his death and his two kids Sean and Mary were twelve and sixteen. Sean was in sixth grade and Mary was in eleventh grade. All three depended on his income of about $75,000 last year, as a structural ironworker

asserted by each defendant? How do you think the judge will rule on each

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erecting buildings made of concrete beam construction. Your boss says Assuming we survive the motions for summary what should we do to establish their claims of loss? What elements of damage can they claim on their own behalf and on behalf of his estate? Are there any reductions of the damage claims that we should expect? What are they?

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Q. 3 Martin Mark v. Once Upon a Rose The following facts were developed at trial in the matter of Martin Mark v. Once Upon a Rose, Inc. and Mary Gray and Samuel Gray On February 15, 2011, Mark Mark, a professional caterer, was setting up for an engagement party at a hall he had rented in Smithtown. Samuel Gray, an electrician by trade who sometimes volunteers and helps out his wife, was at the hall with his wife Mary, getting the floral arrangements in place for that same engagement party. Mary is a florist. Her company is called Once Upon a Rose, Inc. Mark arrived at the hall at approximately 3:00 p.m. With the help of his assistant, Mark started bringing the food inside. He also moved tables around the banquet room under the direction of the party planner. Meanwhile, Mr. Gray and his wife were setting up the floral arrangements in the room. Mr. and Mrs. Gray brought all the floral materials to the hall, and they assembled the arrangements at the event. The floral vases were stored in individual boxes, which had then been placed in milk crates. The Grays used two similar types of vases, which were both made of glass and had the same width, except some were a couple of inches taller than the others. They assembled five or six arrangements at the hall. According to Mrs. Gray's testimony, the same glass vases had previously been used between ten and thirty times. Mrs. Gray stated that she had checked all the vases that day for chips and cracks and found none. She did not remove any vases while making the floral arrangements that day. She insisted that she would have removed any vase if it had been found chipped or cracked. During the course of setting up for the engagement party, Mr. Gray began to Page 11 of 15

move a floral vase from one table to another. The tables were ten to fifteen feet apart. The vase in question was a tall glass square, which was flat on all sides. It had bamboo and flowers extending a few feet over the top and was nearly filled with water. From about ten to twelve feet away, plaintiff observed Mr. Gray hold the vase with outstretched arms. According to Mark, Mr. Gray appeared to be applying pressure with the palms of his hands on the sides of the vase, about halfway up on opposite sides. Mr. Gray testified that he had carried the vase in a different manner. As he recalled it, his hands were on the sides near the bottom of the vase, with two or three fingers underneath it. According to Mr. Gray, he did not press the vase against his chest or stomach, but rather carried it with partially extended arms. No one else was touching the vase as Mr. Gray lifted it. He testified that he felt the vase "caving in" and a sensation of the vase pressing inwards. Upon seeing Mr. Gray coming near with the vase in his hands, Mark stepped towards Mr. Gray to help him. According to Mark, as he approached, he said in an undertone, "you're going to hurt yourself." As Mark reached, putting his hands under the vase, the glass shattered. Shards of broken glass fell into plaintiff's hands. The glass shards severely cut plaintiff's hands, which began bleeding. He was in "excruciating pain." Mark was transported to a local hospital with Mr. Gray, who also had been injured. Mark suffered multiple tendon cuts and nerve damage from the glass shards. He underwent emergency surgery that same day. He had physical therapy for over six months to restore movement to his right hand. His injuries from this incident have caused him permanent scarring, a loss of grip strength, and various alleged lifestyle restrictions.

Assume you have been hired to defend both the Grays and Once Upon a Rose, Page 12 of 15

Inc. What motions would you make at the conclusion of the trial testimony above? On what grounds? Then assume you are the judge. How would you rule on the defense motions? If any part of the claim survives how would you instruct the jury?

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Q. 4 Holmes v. Lowes, et al. On January 20, 2010, around 10 AM, Walter Holmes drove to a shopping center off Buckland Rd., East Hartford, Connecticut. It consisted of a parking lot and four standalone stores around the parking lot perimeter - Lowe's Home Center, Bally's Total Fitness, Mattress Giant, and Staples. The businesses were some distance apart, with the entrance to Bally's located several hundred feet from the main entrance of Lowe's, and the entrance to Mattress Giant even farther away. Staples was on the opposite side of the lot from Lowes, about 200 yards away. Holmes parked in the area of the parking lot closest to Lowe's. This area contained shopping cart corrals displaying signs stating: "Please keep our parking lots safe by returning your cart. Thank you for shopping at Lowe's." After making a purchase at Lowe's, Holmes was pushing his shopping cart to his car when he fell on "black ice" in the parking lot. A week earlier there had been a major snowfall. It had also snowed the night of January 18. On the 19th, the lot had been plowed and salted, but on the morning of the 20th there were patches of ice because the banks of plowed snow had melted during the day onto the blacktop and froze at night. No one had salted or sanded that morning before Holmes fell. Another customer came to Holmes's aid and helped him return to Lowe's to report the accident and call an ambulance. Holmes fractured his elbow, requiring surgery. At first he wasnt going to do anything about it, but when a year post accident his wrist ached, and his shoulder still hurt, he consulted John Prior, a local lawyer. Prior gathered medical records and corresponded with Lowes claim department, which offered $2,500. Holmes, of course, declined the nuisance value offer. On January 10, 2012, Holmes (and his wife per quod) sued Lowe's for negligent maintenance of the parking lot. When Lowes answered they stated that the land was owned by Price Legacy Corp., and was leased by Lowes on a thirty year lease of the land where they

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built the store. The lease provided that Lowes had a shared right to use the parking lot for delivery, customer parking, and other uses incidental to the operation of a home supply retail store. Section 8(I) of the land Lease required the landlord to maintain the Common Areas, including snow removal. In turn, each tenant was required to pay a pro rata share of common area maintenance costs. [Lease 8(j)]. Price Legacy had contracted with Lyons Paving & Contracting Co. to conduct necessary snow removal from the Common Areas of the Shopping Center. When Prior learned that Lowe's did not own the real estate upon which he fell, his lawyer amended his complaint to add Price Legacy and Kimco Realty Corporation, the property manager for Price Legacy. This amendment came too late, however, so the District Court granted summary judgment for both entities because the states two year statute of limitations had expired. Assume that you are an associate with the offices of George W. Conk, who has been named a Super Lawyer, year after year, based on peer surveys. Holmes and his wife come to you and say we just learned that part of our case was lost because it was filed too late. We want you to take over because we saw your ad which says dont just hire a lawyer, hire a recognized Super Lawyer. You recount the above facts to Mr. Conk, who says: `I am very busy, leaving for China in the morning. Do some research, prepare a memo addressing any available claims, assessing their strengths and weaknesses. Give me a recommendation on whether we should agree to take on the case, replacing Prior as counsel.

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